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Cite as: [2017] 1 Cr App R 23, [2017] Crim LR 706, [2016] EWCA Crim 2043, [2017] 4 WLR 39

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Neutral Citation Number: [2016] EWCA Crim 2043

No: 201600029 B2; 201600032 B2

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Strand

London, WC2A 2LL

Thursday, 3rd November 2016

B e f o r e :

VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION

LADY JUSTICE HALLETT DBE

MR JUSTICE WILLIAM DAVIS

MR JUSTICE LAVENDER

R E G I N A

CALLUM PAUL WILCOCKS

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Mr P Rule appeared on behalf of the Appellant

Mr S Medland QC appeared on behalf of the Crown

J U D G M E N T

(Approved)

1. THE VICE PRESIDENT:

2. Introduction

3. The appellant has now been convicted twice of the murder of his partner, Kelsey Shaw, in 2011. His original conviction was quashed by this court in 2015 and a re‑trial ordered. He was convicted for the second time on 1st December 2015. The trial judge, Holroyde J, sentenced him to life imprisonment with a minimum term of 16 years to serve, as had the judge at the first trial. He seeks an extension of time of approximately four days in which to renew his application for leave to appeal conviction, principally on the basis that section 2(1) of the Homicide Act 1957, as amended, offends Article 6 of the European Convention on Human Rights. He also appeals against sentence with leave.

4. We can take the sad facts shortly. The appellant (as we shall call him in relation to both the application and the appeal) and Kelsey Shaw had been in a relationship since 2006, when he was aged 14 and she was 12. They had a child together. The appellant was 19, Ms Shaw 17, and their child three at the time of her death. Their relationship was described as turbulent; they would row and they had both been unfaithful to each other.

5. On 28th April 2011 Ms Shaw stayed at the address of her friend, Rebecca McDonald. The appellant and his brother arrived at the address later that evening. Ms McDonald did not get on with the appellant, but agreed to let them stay. All four had cocaine and drank vodka. The following day Ms McDonald left home, leaving the appellant and the deceased alone. Ms McDonald discovered the appellant had taken money from her bank account the previous night and phoned the deceased. Ms Shaw did not answer; when she did eventually return the call Ms McDonald could hear her crying but not speaking.

6. Ms McDonald returned home. She could not open the front door. The appellant told her to wait and it took some 45 minutes before she was able to gain entry. As she pushed open the door she saw Ms Shaw's arm on the floor. She asked the appellant if Ms Shaw was all right, and he replied, "Are you listening? Are you fucking listening? She's dead ... She's fucking dead. I've killed her". The appellant telephoned his mother and told her that he had killed Ms Shaw.

7. The deceased was rushed to hospital, but she was declared dead at 11.35 on 30th April 2011. The cause of death was a heart attack brought on by asphyxiation and neck compression. Moderate to severe force on the neck had been applied.

8. The appellant was arrested. Initially he claimed that somebody else had climbed through the window and strangled Ms Shaw, but eventually he admitted that he had strangled her twice. At trial he claimed that he and the deceased had argued once Rebecca had left. The deceased accused him being useless; a waste of space. He had put his arm around her neck and caused her to pass out for a few seconds. He said a second argument followed which included Ms Shaw telling him he may not be their daughter's father and may not have been the father of a baby she had had aborted. He claimed that he snapped, grabbed her by the neck, and strangled her again.

9. Defence at trial

10. His defence was two‑fold: loss of control and diminished responsibility. The appellant relied on the following in support of his defence of loss of control:

(i) 11. Ms Shaw told him he was useless and a disgrace;

(ii) 12. She was angry and screamed at him;

(iii) 13. When he tried to apologise for strangling her the first time, she called him a dickhead and said he would not see his daughter again;

(iv) 14. Ms Shaw repeated that he was useless, told him he should have killed himself, he was worthless and no good to anyone, and, that he was "a shit shag" in comparison to another man.

15. The appellant relied considerable emotional and behavioural problems over the years to support a finding of abnormality of mental functioning. These included difficulties at school, self‑harming on a number of occasions and attempts at suicide. Prison records revealed continuing concerns about his self‑harming, his depression, his suicidal thoughts and psychotic episodes.

Expert evidence

16. A number of experts have been consulted over the years about the appellant's mental health. The expert witnesses at trial agreed that the appellant was suffering from a recognised medical condition, (anti-social personality disorder) but they disagreed as to the nature and extent of his disorder. The diagnosis of an anti‑social personality disorder per se could not suffice for the purposes of the defence of diminished responsibility because the experts agreed it could not substantially impair his responsibility. The dispute therefore was over whether the appellant suffered from an additional disorder, a borderline personality disorder, and, if so, its impact upon his mental functioning and whether it would amount to substantial impairment.

17. Dr Nathan was a psychiatrist instructed by the appellant for the first trial, called also at the re‑trial. He diagnosed the appellant with anti‑social and borderline personality disorders. He said the appellant's description of his thinking and his actions were consistent with mental state disturbance arising from a recognised medical condition and influenced by the effects of intoxication. If the appellant's account was accepted by the jury, the argument and things said and done, in his view, were likely to have triggered the activation of the disturbed mental processes that arose from the personality disorder traits.

18. Dr Chesterman was a psychiatrist instructed by the prosecution and gave evidence at both trials. He agreed about the diagnosis of anti‑social personality disorder, but not borderline personality disorder. He felt there was little evidence to suggest the latter. The appellant's behaviour at the time of the offence was, in his opinion, more likely explained by a combination of sexual jealousy and intoxication, rather than rejection or a sense of abandonment. He said many individuals engaged in homicidal behaviour as a consequence of intoxication and sexual jealousy without there being present any mental disorder. The appellant's response was typical of a number of individuals.

19. Dr Shapero was a psychiatrist instructed by the appellant for the second trial. He was of the opinion that the appellant may be diagnosed as having a mixed type of personality disorder. He agreed with Drs Nathan and Chesterman that his condition led to a failure of impulse control and the disorder affected his ability to form rational judgments at certain times, namely during an angry outburst. He questioned the part played by alcohol.

20. Dr Renwick was a psychologist instructed by the prosecution for the re‑trial. He agreed that the appellant met the diagnostic criteria across a range of personality disorders but questioned the extent or any disorder and its impact upon the appellant.

21. Dr J J Miller, a clinical psychologist, was instructed by the defence. He described a personality disorder with traits from many of the categories of personality disorders that resembled Dr Shapero's description of a mixed personality disorder.

Grounds of Appeal against Conviction

22. Mr Rule, who was junior counsel at trial, has advanced three grounds of appeal on the appellant's behalf. We informed him at the beginning of the hearing today that if we were persuaded there was any merit in his arguments, we would be minded to grant an extension of time.

23. Ground 1

24. The judge erred in ruling that the legal burden of proof in respect of diminished responsibility lay with the appellant.

25. Mr Rule attempted to persuade Holroyde J that the reverse burden of proof in respect of diminished responsibility as set out in section 2(2) of the Homicide Act 1957 is an unwarranted infringement of the appellant's Article 6 rights. He invited the judge to read down the provisions of the section so as to impose only an evidential rather than legal burden on the defence. In a careful and thorough ruling, the judge declined to do so. Mr Rule repeated his submissions before us.

26. He conceded that there is a long line of authority against him. Nevertheless, he sought leave to appeal so that he can pursue the point to the Supreme Court. This court has yet to consider and rule upon a challenge to the burden of proof in a case which involves the amended provisions of section 2 of the Homicide Act, as opposed to the original provisions, making this appeal, he argued, a good vehicle for consideration of that point.

27. The original definition of the partial defence of diminished responsibility was as follows:

"(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.

(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder."

Section 2(2) has been read as imposing on the defendant a legal burden of proof on the balance of probabilities.

28. Section 2(1) was amended by section 52(1) of the Coroners and Justice Act 2009. Section 52(1) now reads:

"A person ('D') who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which ‑

(a) arose from a recognised medical condition,

(b) substantially impaired D's ability to do one or more of the things mentioned in subsection 1A, and

(1A) Those things are ‑

(a) to understand the nature of D's conduct;

(b) to form a rational judgment;

(1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for D's conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct."

Section 2 (2) remains the same.

29. In Foye [2013] EWCA Crim 475, the court considered the un-amended section 2 in a case where the sole issue was diminished responsibility. It found that section 2 (2) did not infringe a defendant's right to a fair trial by imposing a burden on the defence to prove diminished responsibility

30. Mr Rule's primary submission is that the decision in Foye was wrong and placing a legal burden on an accused to prove the partial defence of diminished responsibility is incompatible with the European Convention and does infringe the presumption of innocence and an accused's right to a fair trial. He also sought to distinguish Foye on the basis the section has now been amended and the defence raised a second partial defence here. He criticised the court in Foye for paying insufficient attention to the "high stakes" of a murder trial and for paying "undue deference" to the will of Parliament. If a defendant fails to satisfy the burden on him, will be convicted of murder and sentenced to life imprisonment. He reminded us that the reasoning in Foye has been the subject of academic criticism by Professor Andrew Ashworth QC in the Criminal Law Review 2013 (Crim LR 849).

31. He took us to the judgment in Asmelash [2014] QB 103, [2013] 1 Cr App R 449 at 33, in which the court held that it was "inconceivable" that different criteria should govern the approach to the issue of voluntary drunkenness depending on whether the partial defence under consideration is diminished responsibility or loss of control. In paragraph 24 of the judgment, Lord Judge CJ observed:

"Indeed, given that in a fair proportion of cases, both defences are canvassed before the jury, the potential for uncertainty and confusion which would follow the necessarily very different directions on the issue of intoxication depending on which partial defence was under consideration, does not bear contemplation."

Mr Rule argues that similar considerations should apply where you have two or more partial defences being run.

32. If that submission failed, his alternative submission was that the burden of proof may vary depending on the facts of the case. When pressed as to how that would work in practice, he suggested the Supreme Court could provide a set of principles to be applied by trial judges in individual cases. The trial judge should consider, for example, whether an additional defence such as loss of control was a live issue, if so he/she should direct the jury that the same burden of proof applies to both defences.

33. Mr Rule's explanation for this approach stems from what he calls the closer alignment between the new defence of diminished responsibility and the loss of control defence. Loss of self‑control features in both definitions; the jury should not be directed therefore to apply two different legal burdens of proof in relation to consideration of the same evidence.

34. Moreover, Mr Rule argues that whether an individual conviction involves a violation of the presumption of innocence contrary to Article 6 will be entirely fact‑specific. He urged the court to find that the application of a reverse legal onus should be analysed within the context of the individual case to see if the burden operates in a fair and legitimate manner in that case. He derived this principle from Sheldrake v DPP [2005] 1 AC 264 at paragraph 21, where Lord Bingham stated:

"The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case."

35. Mr Rule also raised the possibility of our referring a question of 'European Union Law' to the European Court of Justice. He took us to the most recent Directive intended to strengthen aspects of the presumption of innocence. The presumption of innocence is within the scope of EU law and within the general principles of the Charter, therefore he maintained that the ECJ should determine whether section 2 as amended is compatible with the general principles of the Charter.

36. Ground 2

37. The definition of the circumstances of the accused for the purposes of section 54 of the Coroners and Justice Act 2009.

38. Section 54 provides:

"Partial defence to murder: loss of control

(1)Where a person ('D') kills or is a party to the killing of another ('V'), D is not to be convicted of murder if ‑

(a) D's acts and omission in doing or being a party to the killing resulted from D's loss of self‑control,

(b) the loss of self‑control had a qualifying trigger, and

(c) a person of D's sex and age, with a normal degree of tolerance and self‑restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

(2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.

(3) In subsection (1)(c) the reference to 'the circumstances of D' is a reference to all of D's circumstances other than those whose only relevance to D's conduct is that they bear on D's general capacity for tolerance or self‑restraint.

(4) ...

(5) On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection (1), the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.

(6) ...

(7) A person who, but for this section, would be liable to be convicted of murder is liable instead to be convicted of manslaughter.

(8) ..."

39. This section was the subject of some debate at trial. The issue was the extent to which the appellant's circumstances were relevant given the restriction in subsection (3). Mr Rule contends that a mental disorder may be relevant to consideration of an individual's capacity (going beyond general capacity) and should be included in all the circumstances of the defendant. In this case the evidence of two psychiatrists was that the defendant's ability to form a rational judgment was affected by his disorder.

40. In his summing‑up and written directions, Holroyde J directed the jury that the expert evidence was very important in relation to diminished responsibility. In relation to the defence of loss of control he said:

"If and insofar as you conclude a personality disorder reduced his general capacity for tolerance and self‑restraint, that would not be a relevant circumstance when you are considering the defence of loss of control. But it is important to emphasise that this exclusion only relates to any feature of a personality disorder which reduced his general capacity for tolerance and self‑restraint. Let me give you an illustration. If you thought that CW suffered from a personality disorder which made him unusually likely to become angry and aggressive at the slightest provocation, that would of course be relevant to diminished responsibility but it could not assist him in relation to loss of control. But if you thought that a personality disorder had caused him to attempt suicide, then you would be entitled to take into account as one of his circumstances the effect on him of being taunted that he should have killed himself."

41. It was Mr Rule's understanding that the judge thereby ruled the expert evidence inadmissible on the defence of loss of control. If so, Mr Rule argues the judge was wrong.

42. Ground 3

43. The judge's failure to provide assistance on the meaning of the word "substantial" in relation to impairment of mental functioning.

44. The Supreme Court has heard argument and judgment is awaited in R v Golds [2015] 1 WLR 1030, [2014] 2 Cr App R 17. Mr Rule suggests the judgment may provide guidance as to the approach the jury should adopt in addressing the issue of substantial impairment, which may affect this case. Substantial impairment was one of the material issues. To preserve the appellant's position, he sought leave to appeal on the basis that the judge did not direct the jury that "substantial" means more than minimal.

Conclusions

45. As Mr Rule anticipated, we shall dispose of ground 1 in summary form. Lord Hughes, in Foye, conducted an extremely thorough analysis of the law and principles on the issue of the reverse burden of proof in section 2 and we do not intend to repeat it. If we did, no doubt the ever industrious Mr Rule would find some way to argue that our judgments were inconsistent. Lord Hughes addressed all the principal submissions advanced before us by Mr Rule, including the presumption of innocence and incompatibility with the ECHR. Whatever criticisms may have been made of some of the court's reasoning by Professor Ashworth, the statement of the law and applicable principles in Foye are clear. We would generally consider ourselves bound by the judgment in Foye in any event, but we learned during the course of today's hearing that the court in Foye certified this very point as a point of law of general public importance and the Supreme Court declined to give leave. This re-enforces our conclusion.

46. We reject Mr Rule's attempts to distinguish Foye and we are entirely confident that even if we were minded to give leave and certify (which we are not), the Supreme Court would reach the same decision in relation to the amended section. The statutory provision that on a charge of murder it should be for the defence to prove diminished responsibility remains exactly the same.

47. Lord Judge's remarks in Asmelash should not be taken out of context. He was questioning the absurdity of having different rules about the relevance of voluntary intoxication for the two defences not different burdens of proof. It is common place for the defences of loss of control and diminished responsibility to be run in tandem; it causes no real difficulty, particularly now that it is common practice to provide juries with written steps to verdict. In any event, this same argument, based on the same words of the same subsection, was addressed and dispatched by Lord Hughes in Foye.

48. We reject as nonsense the suggestion that the statutory burden will shift depending upon the individual facts and the individual circumstances of the individual offender. There is no basis for such an interpretation in the section itself.

49. We are satisfied, as the court in Foye was satisfied that there is nothing arbitrary or unreasonable about the legal burden (to the civil standard of proof) being placed on a defendant who wishes to assert the partial defence of diminished responsibility. He is not required in any way to prove the elements of the offence or murder.

50. On ground 2 there was nothing wrong with the judge's directions. Holroyde J directed the jury in clear and fair terms that for the disorder to be relevant to this part of the case, it must go further than simply reducing the appellant's general capacity for tolerance and self‑restraint. He gave only one example of how the personality disorder may be relevant to the issue of loss of control (the most obvious on the facts) but he did not exclude other possibilities. A direction in these terms is what section 54(3) requires.

51. Ground 3 arrived fairly late in the day. Nevertheless, we have considered it. There is, as yet, no authority requiring a judge to define the word "substantial" when directing a jury on the issue of diminished responsibility; but there is authority to the effect that there is no such necessity. In any event we were not persuaded that on the facts of this case the provision of a definition of substantial would have made any difference. It certainly would not have advanced the defence. Accordingly, we see no reason to give leave to appeal on that ground.

Sentence

52. We turn to the appeal against sentence. The appellant is now 23. He has been convicted of 22 offences on 13 occasions. He has been sentenced to detention and training for robbery and burglary, and terms of imprisonment for robbery, attempted robbery and possession of an imitation firearm. He has breached numerous community based orders and committed various driving offences.

53. Mr Rule criticised the judge's choice of a 15 year starting point for the minimum term, saying it was too high for this particular appellant. It failed to give any, or any adequate, weight to the appellant's age and maturity, the lack of premeditation and his mental disorder.

54. In the eyes of the law, the appellant may be an adult, but at the time of sentence he was just 19 years and three months and still a very young and, it is said, immature young man. The court in Peters, Palmer & Campbell [2005] 2 Cr App R (S) 101, emphasised that the passage of an eighteenth or twenty‑first birthday may not tell one much about an offender's level of maturity, his insight and his culpability.